international law essay

South China Sea Disputes and Resolution

The maritime disputes in the South China Sea impact on a series of regional bilateral relations and continue to trouble ties between China and the Association of Southeast Asian Nations (ASEAN). The Spratly Islands are claimed by China, Taiwan, Vietnam, the Philippines, Malaysia and Brunei while the Paracels have been controlled by China since 1974 and are claimed by Vietnam and Taiwan. The maritime disputes are influenced by economic, strategic and political interests.

The free navigation of commercial vessels in the South China Sea is essential for regional and international trade. Moreover, the area is rich in fishery resources and is expected to have oil and gas reserves. The South China Sea dispute also has an obvious strategic dimension. In addition, control of the maritime communication routes would be strategic, as it would affect the interests of the US, Japan and other maritime powers that cross these waters. Finally, the territorial claims are of nationalist importance to claimant states. Retracting territorial claims or making concessions on the question of sovereign jurisdiction would be costly domestically and perceived as a sign of weakness regionally.

Cause of the Dispute

The South China Sea dispute involves 6 countries, namely China (including Taiwan, who maintains similar claims as China), Brunei, Indonesia, Malaysia, the Philippines and Vietnam. The main issues of the dispute involve territorial claim and demarcation of territorial sea and Exclusive Economic Zone (EEZ) generated by the territory.

Territorial claim involves China, Brunei, Malaysia, the Philippines, and Vietnam. Since most of the disputed area is under surface of water during high tides, the exact number of islands and rocks are difficult to calculate. Among the known islands, only a few dozen are inhabitable. Of the disputed islands and rocks, Vietnam took 30, the Philippines 9, Malaysia 6, Brunei 1 and China 7. The dispute of demarcation of sea territory and EEZ in area surrounding Spratly Islands involves China, Brunei, Indonesia, Malaysia, the Philippines and Vietnam. Before 1960s, the dispute focused on the right of fishery. After 1960s, focus of dispute has been on the right of fishery and ownership of the oil and natural gas. The dispute on the ownership of oil and natural gas reserves has become the major concern in recent years. Of the two types of disputes, the dispute on the territorial claim is the key. According to the United Nations Convention of the Law of the Sea (UNCLOS), once the ownership of territory is decided, the territorial sea, maritime zone and EEC can be set according to the UNCLOS clauses.

The claims made by the parties involved in the South China Sea dispute are consisted of historical claims of discovery and occupation and claims that rest on the extension of sovereign jurisdiction under interpretations of the provisions of UNCLOS. China views the South China Sea as an exclusive Chinese sea and claims almost the entire territory. Its historical claims are based on the discovery and occupation of the territory. In 1947, the Nationalist government defined China’s claims by an area limited by nine interrupted marks that cover most of the South China Sea. Until the reunification, Vietnam had recognized Chinese sovereignty over the Paracel and Spratly Islands. Since 1975, Vietnam has claimed both Islands based on historical claims of discovery and occupation. In 1977 Vietnam also established a 200-nautical-mile Exclusive Economic Zone. The other ASEAN members involved in the dispute present conflicting claims which are limited to specific parts of the Spratly archipelago and tend to rely on International Law, including the extension of the continental shelf, rather than on historical arguments. Among the member states, the Philippines claims the largest area of the Spratly - Kalayaan. First officially proclaimed in1971, the 1978 presidential decree of the Philippines declared Kalayaan as part of the national territory. The Philippines also established a 200-nautical-mile EEZ. Malaysia extended its continental shelf in 1979 and included features of the Spratly in its territory. Brunei then established in 1988 an exclusive economic zone of 200 nautical miles that extends to the south of the Spratly Islands and comprises Louisa Reef. Indonesia who is not a party to the Spratly dispute and was neutral in the South China Sea issue until 1993, became one of the claimants because of the suspected extension of Chinese claims to the waters about the Natuna gas fields currently exploited by Indonesia.

The causes of conflicts were of legal and economic origins. In regard of legal origins, there are two laws and practices on which all the claimant based upon. The first one is the law of “continuous and effective acts of occupation". The second one is the United Nations Convention of the Law of the Sea (UNCLOS). Before the rectification of the UNCLOS by all the claimant governments, the “effective occupation" law was the prevailing rule which result in military conflicts between China, Vietnam and the Philippines who tried to effectively occupy the disputed islands for international reorganization. With the rectification of the UNCLOS, some claimants may have misused it to extend their sovereign jurisdiction unilaterally and justify their claims in the South China Sea. The economic cause of the dispute is the estimate of large reserves of oil and natural gas as well as the fishery right.

Analysis of Claims of the Countries Involved

All the claimants based their claims on the ground of modern international laws, while historical evidences are also used.

China bases its claim primarily on historical background. According to Chinese history, Spratley and Paracel islands were first discovered by the Chinese, some Chinese historical document describes the area as Chinese territory since as early as 300AC. However, its continuous control of the disputed area was interrupted in modern history. Chinese considers itself as a victim of the aggressions of imperialism and the conflict between superpowers, which deprives it of its historical claims. Under the current international law, China will be hard to defend its claims, thus has refrained from using legal terminology to specify its demands. On the other hand, the Chinese Congress passed a law to claim the territorial water.

Vietnam also sees the region as a historical territory as the China. Vietnam’s claim bases on the inheritance ground to prove its effective and continuous control. However, Vietnam acknowledged Chinese sovereignty over the disputed islands during its war with France and the U.S. It started its dispute China’s claim after its relations with China deteriorated in the early 1970s.

Malaysia’s claim of the features in southern Spratley falls inside the border of Malaysia’s continental shelf. Therefore, its claim is primary on legal ground.

The Philippines bases its claim on the continental shelf. It also tries to base its claims on historical arguments. But the claims are too modern comparing to the historical claims made by China and Vietnam. The Philippines never claimed the main island of Spratley which is outside the Exclusive Economic Zone of the Philippines.

Indonesia’s claim to the South China Sea is limited to the Exclusive Economic Zone and continental shelf. Indonesia claims neither the Spratly nor the Paracel Islands.

Brunei’s claim is based on a straight-line projection of its EEZ as stipulated by the United Nations Convention on the Law of the Sea. Brunei has not officially made claims neither to any reef nor to any of the Spratly islands.

The development of South China Sea Dispute

A discussion on the dispute of the South China Sea should be made with China as the starting point with two reasons. First is that China is the primary actor in dispute and China’s stance is decisive of the outcome of the dispute solution. Second is that China is involved in most of the disputes.

Before the 1960s, other claimants of the South China Sea admitted or did not respond to China’s claim of South China Sea islands. But after 1960s, when large reserve of oil and natural gas were found in the region, claimant countries began to counter China’s claim and the dispute arose. The disputes after 1960s can be divided into 3 phases.

The first phase was between 1970s and early 1990s when claimant countries adopted various measures to conquer or control islands and rocks in questions. The most sever military conflict took place between China and Vietnam in the 1970s. After the formulation of the United Nations Convention on the Law of the Sea in 1982, based on their own interpretation of the UNCLOS, claimant countries started to legitimate their claims based on the UNCLOS. The period between 1970s and early 1990s was characterised with constant military conflict because of lack of communications and trust among claimants. On the other hand, the Cold War prevented those conflicts to escalate to larger scale wars.

The second phase started with China’s formal proposal of Set Aside Dispute and Cooperative Exploration by Li Peng, then Prime Minster of China in 1990. The proposal was acknowledged by other claimants, but all claimants did not cease the conquering. Military conflicts decreased dramatically between claimants. However, noticeable change of policies of Vietnam and the Philippines toward China took place. With the fall of Soviet Union and lose of its support from the Soviet Union, the Vietnamese government started to improve and normalize its relations with China. In the late 1990s, several agreements were signed between Vietnam and China to settle the land territorial dispute and sea territorial dispute in the Beibu Gulf. Major conflict between the two countries was ceased. On the other hand, the tension between China and the Philippines increased. The tension finally resulted in the signing of the Visiting Forces Agreement between the Philippines and the US in 1998 to involve the US as a balance to China. As to balance China, the ASEAN claimants tried to coordinate their policies towards China, and to internationalize the dispute.

The third phase started by the signing of the A Code of Conduct on the South China Sea in 2002 and China’s joining of the Treaty of Amity and Cooperation in South-East Asia in 2003. The signing of the two agreements marked the official consensus reached between the claimants. As the first multilateral agreement reached between all claimants, the Code of Conduct on the South China Sea stipulates that the dispute should be dealt with in accordance to international laws. Most importantly, the Code of Conduct on the South China Sea expresses the will of all claimants to restrain from escalating the dispute and to resort to the cooperation in possible fields for the purpose of confidence building measures. The two agreements lay the foundation for peaceful resolution of the dispute in the South China Sea.

However, there are several factors which affect the final and ultimate solution of the dispute. The sovereignty issue, which is the fundamental of the dispute, is not touched in the two agreements. The sovereignty issue is likely to be left out in any other further discussions and negotiations between the claimants, especially China and Vietnam. China rejects any concession on the territory issue based on the consideration of domestic politics. Any inappropriate settlement of the issue will give rise to the nationalism at home and affect the legitimacy of the government. Similar considerations are made in other claimant countries. In recent years, sovereignty issue has become so sensitive that claimants have purposely avoided touching upon it in one track official discussions and negotiations. Another factor is the difference in the expectation of scale of involvement in discussions and negotiations. China rejects multilateral negotiation and strongly objects internationalizing the dispute, while other claimants prefer the opposite, hoping to balance China’s superiority in the region.

However, since the beginning of the new millennium, despite their differences, all claimants, especially China, are keen to maintain a peaceful environment in the dispute area. This desire of peace is due much to the spread of globalization and increasing reliance on international trade of each claimant’s economy. The new millennium also features the increasing number of energy co-exploration projects between claimants. Regional economic cooperation is also booming, especially with the establishment of a Free Trade Area between China and ASEAN, the largest free trade area in the world in terms of population. Regional economic interdependence between claimants has dramatically reduced the chance of military confrontation.

Methods to Resolve the Dispute

The dispute on South China Sea can be solved with measures which have been used in successful settlement of other disputes. For example, a legal solution will be quick and lasting. By adopting a legal solution, all claimants will agree to submit the dispute for arbitration to the International Court of Justice (ICJ) who will judge the dispute according to the international laws applicable. A political solution which is also called one track approach will be time consuming but lasting. By adopting a political solution, all parties will discuss the dispute in formal occasions, either at bilateral or multilateral levels. Other measures such as Confidence Building Measures (CBM) can also be applied to avoid further conflict and promote understanding among claimants. Confidence Building Measures can include two track approaches such as the workshop approach or undergoing joint projects in the disputed areas, as well as cooperation in energy exploration. Two track approach is supplements to one track approach. By holding informal meetings and carrying out cooperative projects, claimants can accumulate confidence and understanding.

In the case of the South China Sea dispute, since most of the claimants are reluctant to resolve the sovereignty issue through any of the approaches, a permanent peace is unlikely to achieve for the time being. However, temporary peace is possible. Peace can be obtained when claimants’ interests are attended to. Comparing to the interest of sovereignty, the other two interests are comparatively easier to accomplish, namely security of sea lanes and exploration of natural resources. First, stability and security of the South China Sea are necessary for the economic development of all claimants. Second, previous efforts of all claimants have laid foundation to further carry on negotiations cooperation on issues except territorial claims. In this regard, China’s proposal of setting aside dispute will be a wise choice for all claimants.

Due to the complexity of the dispute, no single approach can achieve the permanent peace. A combination of the available approaches is necessary for obtaining peace. In this regard, the approaches which have been adopted by the claimants are in the right direction. First, the Declaration on the Conduct of Parties in the South China Sea signed in 2002 shows the signs of all claimants’ will to demilitarize the dispute. This effort ensures that the dispute develop into a political issue which can be solved by political approach in the future. Second, the two track approaches, including the ASEAN Regional Forum and other informal meetings will be playing more important role in providing ideas and suggestions to solve dispute and exchanging information to avoid further conflict due to misunderstanding and lack of communications. Other two track approaches, like the economic integration and energy co-exploration can further closer the ties between claimants. Third, the one track approaches, including the 10+1 Summit between ASEAN and Chinese leaders and other regular ministerial-level meeting mechanisms can review and co-ordinate each country’s behaviour to enhance understanding and cooperation. The ideal goal of the combined approaches is that even though it cannot ensure permanent peace, when the loss of economic interests and political risk outweigh the military gain, according to realist theory, state will act rationally to avoid conflict. Peace is thus sustained.

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